Following the repeal of the Emergency (Public Order and Crimes Prevention) Ordinance 1969, Putrajaya is now turning to the Prevention of Crime Act 1959 (PCA) to facilitate preventive detention and detention without trial.
The authorities claim that the Emergency Ordinance had served the country well, particularly against criminal organisations, and thus certain elements of the law must be retained and thus Putrajaya is trying to push for several crucial amendments to the PCA during the ongoing Dewan Rakyat session.
How drastic are the changes?
Essentially, the core structure of the PCA is retained, whereby a person suspected of having committed a registrable offense shall appear before an inquiry.
The registrable offenses is outlined in the PCA and generally cover crimes such as triad activities, drug trafficking and organised crime. If a person is found guilty by the inquiry, he will then be placed on a registry and will be subject to certain conditions.
The proposed amendments stipulates two conditions that can be imposed by a board through an inquiry, namely a detention order and a supervision order.
A detention order allows for detention without trial for a period of two years. This order can be extended by another two years by the board.
This order can only be applied if the inquiry has concluded that the registered person has committed two or more serious offenses and had contravened the conditions of the person's earlier supervision order.
A supervision order allows for a registered person to be attached with an electronic monitoring device and imposes conditions such as restriction on internet use or meeting with other registered persons.
The supervision order is applied on a person in the registry who the inquiry has concluded had committed two or more more non-serious offences and had not received such an order before or had previously received a supervision order but had complied with all conditions imposed.
Does the home minister still call the shots?
Unlike the repealed Internal Security Act 1960 and the Emergency Ordinance, the minister will no longer have a free hand in ordering detentions.
Instead, detentions under the PCA can only be imposed by a three-member board, which will be led by either a Federal Court judge, a Court of Appeal judge or a High Court judge.
Can you appeal against the board's decision?
No. The newly introduced Section 15A(1) explicitly states that no judicial review is allowed against the board's decision or findings in the exercise of its discretionary powers.
However, a judicial review is still applicable on matters concerning the board's compliance with procedural requirements.
The requirements are spelled out in the newly included Section 7C that outlines the criteria a person must fulfill in order to be issued a detention or supervision order.
However, there is still a grey area, because while Section 15A(1) precludes judicial review for the board's discretionary powers, Section 19A(2) allows for a High Court review of the board's decision when ordering a detention or extending a registered person's detention period.
Will a registered person have legal representation?
No. The newly introduced Section 9(5) stipulates that the registered person and witnesses at the inquiry have no access to legal representation. However, the registered person can have a lawyer when his own evidence is being taken and recorded by the inquiry officer.
A registered person will also be denied legal representation when the inquiry officer quizzes him in detention, under the newly introduced Section 9A.
What measures are there to ensure transparency?
The home minister will be required under Section 19E to submit an annual report on all activities related to detention orders under this law to Parliament.
The board and inquiry must also serve a copy of their findings on the person who is the subject of their investigation and will be decided on.
However, Section 21A allows the board, inquiry officers or any public servant to withhold information if they deem it to be in the public's interest or for the safety of a witness, family or associates.
How long more will we have detention without trial?
At least five years. Section 19F states that the sections concerning detention without trial must be reviewed by the Dewan Rakyat and Dewan Negara every five years.
If the review is not conducted, the sections concerning detention without trial will cease to be in effect.
A PDF copy of the PCA in its present form can be downloaded here.
For our earlier FAQ on the PCA, click here.